While social media policies can certainly go too far so too can criticism of such policies. I found that to be true with a recent Above The Law blog post Biglaw Firm Holds Associates To Strict Social Media Policy. In a full hat tip, the post was sent to me by Scott Malouf (@ScottMalouf) who also recently interviewed me for an article about social media legal issues. The interview went so long (because us lawyers don’t know how to shut up–case in point, look at the length of this post!) that it was divided into four parts so here’s a link to part 1 if you’re interested.

The blog post is highly critical of the social media policy put out by Milbank, Tweed, Hadley & McCoy, a large firm with hundreds of attorneys and offices around the world. Three criticisms of the firm’s social media policy are presented in the blog post, all of which I think are going a bit too far. I’m not sure if the tenuous arguments are just the blogger trying to be sensational or an honest critique. In case of the latter I thought it was right to call out the attack for being short sighted. And in doing so it may provide some guidance to others still working on their own social media policies.

Here is the first policy section criticized:

The Firm is aware that its lawyers and administrative employees may wish to participate in or contribute content to social networking websites, weblogs, internet diaries, tweets, wikis or other publicly accessible Internet forums (“Social Media Sites”) for both business and personal use. Unfortunately, Social Media Sites may create opportunities for personal and professional embarrassment, breaches of confidentiality, real or perceived violations of privacy and identity theft, and the risk of publishing views or information that may be inconsistent with the interests of one or more Firm clients, among other hazards.

The blogger does point out that much of this is true and it’s good to signal these concerns to the attorneys. But then the post goes on to read

That said, the language “may be inconsistent with the interests of one or more Firm clients” is a little troubling. The policy correctly notes that even “the personal activities of lawyers and administrative employees on Social Media Sites may be misperceived as Firm-authorized,” but how far can Milbank go in labeling private statements as candidates for misperception? Can Milbank hold it against an idealistic lawyer bad-mouthing offshore drilling and promoting new legislation/regulation when the firm represents large energy concerns? One would hope not, but the policy reads like that’s a real possibility.

The notion that an individual might bring about some negative consequences for their employer shouldn’t be a surprise to a large blog like ATL. There are countless examples over the past several years. Although this blog post came out on December 9 so it can’t be faulted for not knowing the most recent example of now former public relations executive Justine Sacco and her racist AIDS tweet. Social media content can go viral in minutes and even someone with less than 500 followers (as Ms Sacco had) can end up on the front pages of news sites in a few hours.

Milbank’s point, which the blog ignores, is that it isn’t the firm that will try and connect an individual post to a corporate position. It’s the blogosphere and social media community that will do so. When Ms Sacco made her tweet nobody thought that her employer believed the same thing, but there was an immediate request for a statement and the obvious need to distance themselves from such a tweet. This is a heightened concern for an employee of a media company since their conduct on social media is plausibly connected to their work. But the same is also true for an attorney who handles sensitive information and is supposed to be a trusted advisor. Like it or not, a lawyer who behaves badly will call into question the firm that trusts the lawyer. Here’s just one example of an attorney behaving badly that ended up getting his firm fired. There are many more.

We have seen a constant blurring of the line between personal and professional life. Despite the wealth of jokes about lawyers, attorneys are held to a higher standard. Lawyers know this and law firms know it too. Calling it out specifically to lawyers and telling them that their actions may create conflict for a client or firm isn’t wrong.

The second section of the policy criticized by the blog reads

Although the Firm strongly discourages any lawyer or administrative employee from disclosing his or her association with the Firm when participating in discussions or asserting opinions on a Social Media Site, if a lawyer or administrative employee discloses his or her association with the Firm in such circumstances, a disclaimer along the following lines must be included: “This material/opinion is my own and does not purport to represent the positions, strategies or opinions of my employer.”

That’s not a horrible recommendation. The firm is encouraging attorneys to just leave the firm out of any discussions but if it comes up to include a standard disclaimer. Although it’d be nicer to have the disclaimer be left up to the attorney and perhaps made a bit more organic, it’s not hard to see why such a large firm would just make standard text. The blog post goes out of its way to critique this part of the policy:

Most Facebook profiles identify the person’s current employer. In that case, wouldn’t a person be “disclosing his or her association with the Firm when participating in discussions or asserting opinions” in every conversation they have on Facebook? I’m guessing this disclaimer isn’t added to every post where a Milbank associate posts about the One Direction concert they went to last night. Even though that’s horrifically embarrassing for the firm and everyone else connected to the lawyer.

First, pointing out that Facebook profiles mention the person’s employer ignores the part of the policy where the firm suggests attorneys not do that. But even if a profile did include that information, the firm isn’t necessarily part of the conversation. This is why I always encourage people to disclose their employer or employment relationship if they are talking about their work. I always hear the standard “But it’s in my profile!” or “All my friends know for whom I work!” (okay, most of them don’t say whom or even talk like that). But the point isn’t about your friends or what they know, it’s how a post can be shared or seen by others that don’t know you or your employer. That’s the time you want the disclosure to be built-in.

Here, the firm wants the disclosure to be built-in if you’re going to talk about a matter relating to an attorney’s job. Which could only be talking about a client or a legal matter and you can see why they would want the disclaimer. Trying to stretch this to a post about One Direction is overreaching. Or, in the words of One Direction: That’s what makes it non-sensical. (And let’s all forget I tried to make a joke about 1D lyrics, mmkay?)

The final part of the policy criticized by the blog reads:

The Firm reserves the right to monitor the activities of lawyers and administrative employees on Social Media Sites and may at any time request or require the removal of any posting or content on a Social Media Site. If conduct is in violation of Firm policies and/or is seen as compromising the interests of the Firm, the Firm may take appropriate disciplinary action.

While I think this is a bit wordy and potentially unnecessary (reserving the right to monitor?) it captures what we can imagine most social media savvy companies do already. Perhaps they only wait for a crisis to erupt or they have a third party monitor conversations or they engage in more active monitoring on their network. But not being aware of what your employees are saying in light of heightened risks over what your employees might say isn’t just risky but potentially really dumb. And big law firms, successful ones anyway, aren’t dumb. But here’s what the blogger had to say about this section:

That’s probably just meant to cover Milbank’s bases, and not a declaration that Milbank has NSA screeners checking out every Pinterest post that some Tax associate just put up. Still, welcome to the Panopticon of One Chase Manhattan Plaza! Your employer may be checking up on your private life right now and preparing “disciplinary action” for posts the firm — and the firm alone — decides cast the firm in a negative light. Or maybe they aren’t checking up. You’ll never know!

This is a fairly weak criticism because at this point you should expect a social media aware company to be monitoring social media. That’s part of the point of being on social media. A small part of that may be monitoring your employee’s posts, but more likely than not those posts simply fall into the bucket of monitoring the conversations around your brand. But nobody should be surprised that a company might see an employee’s post–whether they looked for it intentionally or not is irrelevant. That is a far cry from “checking up on your private life” and goes too far in criticizing the policy.

I’m not saying the Milbank social media policy is perfect–no policy is perfect. But it’s a pretty good one for a law firm. And the areas in which Above The Law criticizes it are unfair–these are real concerns for any company, let alone a law firm which must hold itself to a higher standard. That said, there are areas where the policy could be less restrictive or wordy (or just deleted to make it shorter and more memorable), especially when it comes to mentioning other policies or rules (and if they think they need to remind their attorneys that the same rules apply on social media then maybe they need to do more than put out a memo). I’m all for improving policies but I think taking potshots at a good policy goes too far.

IMPORTANT DISCLAIMER

SoMeLaw Thoughts are entirely my own opinion about social media legal issues and not the statement, opinion, or in any other way affiliated with Dell.

This means I could be completely wrong about everything I post here. Sure, I’ve practiced for over ten years in technology law and have supported Dell’s social media team for a fair amount of time, but if you get five lawyers in a room and ask a question you’re likely to get seven different opinions. Oh, and it’s a really boring room. And someone will probably start quoting Latin. So I could be totally wrong here.

This is also not specific legal advice for you. I don't know you. Even if I know you I didn't write this for you, I wrote it for the blog and you're reading it. You want legal advice? Hire an attorney! A good one.